An order by the Court for an advance payment of damages is certainly not automatic, but requires that special circumstances exist. A Justice must also be satisfied there there is no possibility that the final damages assessment will be lower than the amount of the advance payment. Examples of what can constitute special circumstances include the specific reason for a trial adjournment, as well as the financial circumstances of the person applying for an order granting the advance payments.
In Van Gils v. Grandmaison, the Plaintiff was injured in a motor vehicle collision, and subsequently brought an ICBC claim for several types of damages, including pain and suffering, loss of income, diminished earning capacity, loss of housekeeping capacity, and the cost of future care. The trial had originally been set for a period of eight days, however by the time of the Trial Management Conference, it became apparent that this would not be enough trial time, so the trial was adjourned to a later date. An application was brought by counsel for the Plaintiff for an advance of damages. The Court did award an advance of slightly more than $18,000.00, which incorporated pain and suffering, wage loss, and special damages. The Court did not award an advance for certain types of damages such as loss of housekeeping capacity, diminished earning capacity, and the cost of future care, as these would depend on the credibility of the Plaintiff, as well as the testimony of the experts at trial.
[5] It is common ground that the governing the authority is the decision of Mr. Justice Macfarlane in Serban v. Casselman (1995), 2 B.C.L.R. (3d) 316 (C.A.) leave to appeal ref’d [1995] S.C.C.A. No. 120.
[6] The often-cited passage is at para. 11:
While such orders are often made when the adjournment was brought about through the fault of one party or where the conduct of the litigation demands such an order, the rule is not restricted to matters of that kind. It is obvious that an order for advance payments should only be made in special circumstances. Obviously such an order should not be made unless the judge who makes it is completely satisfied that there is no possibility that the assessment will be less than the amount of the advance payments.
[7] I think that the current situation meets the requirement of “special circumstances”. This trial was adjourned at the direction of the Court, pursuant to the Supreme Court Civil Rules, because it would exceed the original estimate and the trial schedule could not absorb that excess.
[12] In addition, the material shows that Mr. Van Gils is in financial difficulty and will now have to wait until sometime in September of 2014 (the earliest date that a new trial can be set in accordance with counsel’s calendars and court availability) to find out what damages he will be entitled to.
[13] I must also be “completely satisfied” that there is “no possibility” that damages could be awarded in a lower amount than any advance. This is not in any way a prediction of the possible outcome of the trial, which is an impossible task in any event at this stage and on this material. Rather, it is a negative assessment — identifying the point below which it is certain that the damage awards will not fall.
